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Supreme Court aligns with trial court in dog-attack case

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The Indiana Supreme Court has affirmed a trial court judge’s finding that the city of Evansville and its animal control division are not liable in a dog attack that seriously injured a boy.

Siding with Vanderburgh Circuit Judge Carl A. Heldt, the Supreme Court found that the Indiana Court of Appeals was in error when it reversed Judge Heldt’s decision.

In the case of Misty D. Davis v. Animal Control - City of Evansville, et al., No. 82S01-1102-CV-77, Misty Davis filed a complaint against the city and its animal control division in 2007, two years after a Rottweiler attacked her six-year-old son. Davis claimed that animal control “was well aware of this dog’s violent propensities based upon numerous prior attacks by this dog,” yet failed to protect her son from the animal.

The trial court found that the city defendants were entitled to law enforcement immunity under the Indiana Tort Claims Act, which provides immunity to governmental entities for any loss resulting from the failure to enforce a law. Davis appealed that decision, claiming law enforcement immunity did not apply because the complaint is not based on the defendants’ failure to enforce the law but rather on their failure to follow their own procedures for determining whether an animal is dangerous as set forth in the Evansville Animal Control Ordinance. The Court of Appeals majority agreed. Judge James Kirsch dissented.

In reversing the trial court’s decision, the COA relied on the Supreme Court decision in Mullin v. Municipal City of South Bend, 639 N.E.2d 278 (Ind. 1994), limited on other grounds, Benton v. City of Oakland City, 721 N.E.2d 224, 231 (Ind. 1999). In that case, the Supreme Court considered whether the failure of an emergency dispatcher to send an ambulance to a house fire despite a department policy stating that medics would be dispatched to all fire calls where someone was thought to be inside fell within the parameters of law enforcement immunity.

In Mullin, the Supreme Court concluded that the scope of  enforcement is limited to activities in which a governmental entity or its employees compel or attempt to compel the obedience of another to laws, rules or regulations, or sanction or attempt to sanction a violation thereof. Because the dispatcher in Mullin was not doing any of those things, the claim was not barred by the law enforcement provision.

“This was not the correct way to apply Mullin,” the Supreme Court stated of the COA reversal in Davis. “Mullin did not hold that there was no law enforcement immunity because city employees did not follow procedures; it held that there was no law enforcement immunity because in responding to a fire emergency, the city was not engaged in law enforcement.”

The Supreme Court stated that a dog with the same name had attacked someone before Davis’ son was attacked, but the owner’s address and name were different in both cases; therefore, it’s not certain whether the dog previously picked up and held temporarily by the animal control division is the same one that attacked Davis’ son.

Holding that the plaintiff's claim does constitute an allegation that the city defendants failed to enforce the law, the Supreme Court ruled Davis is not entitled to collect damages from the defendants.

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  1. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

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  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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